Straughan v. Cooper
| Decision Date | 28 February 1914 |
| Docket Number | Case Number: 3085 |
| Citation | 1914 OK 100,41 Okla. 515,139 P. 265 |
| Court | Oklahoma Supreme Court |
| Parties | STRAUGHAN v. COOPER. |
¶0 1. CONTRACTS--Avoidance-- Incompetency to Execute--Intoxication. A person so destitute of reason as not to know the nature or consequences of his act, although such mental condition be the result of his voluntary intoxication, may avoid a contract made by him at such time.
2. NEW TRIAL--Motion--Essentials-- Diligence. A motion for a new trial upon the grounds of newly discovered evidence may be denied if facts constituting due diligence to have discovered same in time for the trial had be not stated therein.
3. APPEAL AND ERROR--Exceptions Below--Instructions. An instruction to the jury will not be considered here unless exception thereto was reserved in the trial court.
4. SAME--Bills and Notes--Verdict--Sufficiency of Evidence. The sufficiency of the evidence to sustain a judgment will be determined in the light of the evidence tending to support same, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts therewith.
Error from District Court, Kay County; W. M. Bowles, Judge.
Action by B. C. Straughan against W. M. Cooper on a promissory note. Judgment for defendant, and plaintiff brings error. Affirmed.
L. C. Brown for plaintiff in error
Sam K. Sullivan for defendant in error
¶1 Plaintiff in error, as plaintiff, on April 1, 1910, sued defendant in error, as defendant, upon a note dated May 23, 1907, due one year after date, for the principal sum of $ 475, bearing interest at the rate of 10 per cent. per annum from its date, and purporting to have been executed by defendant to plaintiff at Arkansas City, Kan.; and defendant's answer consisted of a general denial and also of allegations as follows:
"Defendant specifically denies the execution of said note, and alleges that if at any time he signed the said note, he was in such an intoxicated condition that he has no recollection or knowledge of having signed it, and at the time was entirely dethroned of reason, and specifically alleges that there was no consideration for the signing of the same at the date it was alleged to have been signed, and that the same is wholly without consideration, and never was executed by the defendant."
¶2 These allegations were denied by plaintiff's reply, and, upon the issues thus formed, a trial was had on December 14, 1910.
¶3 There was undisputed evidence to the effect that defendant signed the note sued on (and according to plaintiff's testimony, this was in plaintiff's office with only himself and defendant present), and at the same time gave his personal check to the plaintiff for $ 200, which check was paid. It further appears that there was no consideration for the same other than the then past-due indebtedness of the defendant to plaintiff's firm, known as Straughan Bros., evidenced by fifteen smaller notes made in 1901-3 for the aggregate principal sum of $ 339.75 (on which $ 58 interest had accrued) of which nine such notes in the aggregate principal sum of $ 264.75 (on which $ 26.09 interest had accrued) were then more than five years past due and, if not theretofore actually discharged, were subject to the bar of the statute of limitations, and six other such smaller notes in the aggregate principal sum of $ 75 (on which $ 31.91 interest had accrued) were not subject to such defense; but the plaintiff testified he did not remember the number of notes nor the denomination of any of them, nor what notes were surrendered in consideration of the note now sued on and the $ 200 check, as he or his firm had had so many transactions with defendant, and had held other notes against him; and plaintiff was not more specific than herein stated as to such transactions. The defendant testified that on the occasion when he must have signed the note and check he spent two or three days in Arkansas City on a drunk, and did not remember when or where he signed them, nor any fact relating thereto, except that on his return home he found he had in his pocket the fifteen smaller notes mentioned, which, although he had made several prior payments, were all the notes ever surrendered to him; also that he was drunk at the time of signing some of these fifteen notes, and did not remember it. In answer to question as to what he was doing there, defendant testified he was trying to drink up all the whisky there, he "reckoned"; that that was all he remembered doing.
¶4 Joseph James testified that he accompanied defendant to Arkansas City on the occasion when it appears he signed the note sued on the check; that witness was with defendant during all his stay there, except about three-quarters of an hour, when he was getting his team in preparation for their return home, and defendant got drunk within half hour after arrival, and remained drunk during all the time he was there; that when he went for the team he left defendant at a store, and when he returned found him on the street at another place and helped him into the buggy, and left with him for home; that defendant was drunk enough to stagger and to require assistance to get into the buggy, and soon after they started home fell asleep and slept "for four or five miles," and while en route exhibited to witness a bundle of papers which witness then supposed was money, although the trial court did not permit this to stand as evidence; but this witness testified only in general terms as to being with defendant, and as to the fact that he was drunk before he was taken into the buggy for the start home, and was not questioned as to the transaction in which the note sued on and the check were signed.
¶5 The plaintiff further testified he went to defendant's home several times,...
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